Saturday, January 18, 2020

Competency at revocation proceedings

Hope Faflick Reynolds and Michelle A. Davis won in State v. Rodrigo Gonzalez, No. 120,179 (Kan. App. December 27, 2019), obtaining a remand in a Sedgwick County probation revocation proceeding. The primary issue was whether the Due Process Clause requires competency at a revocation hearing. Mr. Gonzalez had a competency evaluation prior to pleading guilty and receiving probation. When the state sought revocation, circumstances arose that implicated Mr. Gonzalez' competency at the probation revocation stage. The district court held that it did not believe that it could evaluate competency after a conviction. The COA had to decide whether the Due Process Clause applied at that stage:

Against that backdrop, the question remains whether the State may revoke the probation of a convicted felon who is not mentally competent at the time of the revocation hearing. Neither the United States Supreme Court nor the Kansas Supreme Court has addressed the issue. Competency for due process purposes entails "the capacity to understand the nature and object of the proceedings," to consult with a lawyer, and to assist in presenting a defense. Drope v. Missouri, 420 U.S. 162 (1975). Although the definition of competency has been enunciated in criminal cases, it is not exclusive to those proceedings. Given the liberty interest at stake in a revocation hearing, the near ineluctable answer to the question we have posed must be in the negative. 

Assuming a probationer has no constitutional due process right to a lawyer in a given hearing, he or she would bear the burden of representing himself or herself. By definition, an incompetent probationer could not do so. To state the obvious, someone who doesn't understand what's going on can't very well participate in any meaningful way. The statutory right to a lawyer is largely beside the point in assessing the constitutional due process protections that must be extended to probationers facing revocation. Constitutional rights set a floor that a state may exceed but cannot sink below. Moreover, as we discuss momentarily, legal representation is not really an adequate due process substitute for competency in this context. 

Because the district court had refused to consider Mr. Gonzalez' competency at all, the COA remanded for a retrospective competency evaluation. The COA pondered what the remedy might be if Mr. Gonzalez was not competent for revocation proceedings:

So, do the district courts have the authority to order Gonzalez or someone similarly situated restored to mental competence in advance of a probation revocation hearing even if restoration required his involuntary commitment to a mental health facility for some period? We suppose they do. Gonzalez has a significant liberty interest at stake—upon revocation, he has to serve 52 months in prison. The restrictions on his liberty in prison are manifestly greater than those he would experience on probation. As we have found, the Due Process Clause requires him to be competent when the State seeks to revoke his probation. There are, then, two logical dispositions: The district court can either order reasonable steps to restore a probationer's mental competence or preclude the State from moving forward with the revocation, in effect creating a defense of incapacity.

Finally, the COA recognized that it could be a paradoxical situation when a person might be held form months for competency evaluation before getting a short intermediate sanction:

We have reservations about how a probationer's due process right to be competent at a revocation hearing intersects with those lesser sanctions, particularly a two- or three-day jail stay. There is a certain incongruence in suggesting incompetent probationers can be or should be involuntarily committed for months of treatment to render them competent for a hearing to determine whether they should spend a few days (or even 60 days) in jail as punishment for violating a condition of their probation. We posed that incongruity to the lawyers during oral argument and did not have our concerns allayed. This constitutional conundrum, however, invites no immediately obvious solution—that's what makes it a conundrum, after all—so we held no real expectation that the jurisprudential fog might lift during oral argument. 

This case leaves open other questions that occasionally might come up regarding whether competency could ever be relevant at other post-conviction proceedings, like direct appeal or habeas. 

[Update: the state did not file a PR and the mandate issue on February 3, 2020.]

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